Opinion
A117029
5-3-2007
NICOLE B., Petitioner, v. THE SUPERIOR COURT OF LAKE COUNTY, Respondent; LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED
Nicolas B., born in March 2003, and Shane B., born in August 2001, were made dependents of the Lake County Juvenile Court in October and December, 2005, respectively. (Welf. & Inst. Code, § 300.) Pursuant to rule 8.452 of the California Rules of Court, their mother, Nicole B. has filed a petition for extraordinary writ review of an order setting a hearing to select and implement a permanent plan pursuant to section 366.26 (hereafter .26 hearing). She contends the court erroneously denied her April 2006 section 388 petition requesting placement of the children with their maternal grandmother and failed to give the maternal grandmother preferential placement consideration. She also contends the Lake County Department of Social Services (Department) failed to act as an impartial arm of the juvenile court, depriving her of her rights to fundamental fairness and accurate fact-finding. We reject the contentions and deny the petition.
All undesignated section references are to the Welfare and Institutions Code.
Given our resolution of the issues raised by petitioner, we need not address the Departments assertion regarding petitioners lack of standing.
BACKGROUND
In September 2005, Nicolas was detained and a section 300 petition was filed on his behalf under subdivision (b) (failure to protect), alleging that between June and September 2005, Nicolas suffered bruising, cigarette burns and bite marks on various parts of his body, including his penis. In October, the petition was sustained.
The Departments October 2005 disposition report regarding Nicolas stated that in November 2004 petitioner was arrested for driving under the influence of alcohol/drugs, being under the influence of a controlled substance and driving with a suspended license. It also stated that petitioner began using methamphetamine at age eleven. Although she had never completed any drug treatment services, she was actively participating in an outpatient drug treatment program and a parent-child therapy program with Shane. The report stated that petitioner denied causing Nicolass injuries and there was some speculation that Shane could have caused some of Nicolass injuries. Petitioner was visiting Nicolas weekly and the visits were going well. The Department was optimistic that if petitioner continued to participate in all areas of her reunification plan, Nicolas would be able to transition back to her home. The court adopted the Departments recommendations at the October 24, 2005 dispositional hearing.
In November 2005, Shane was detained and a section 300 petition was filed on his behalf under subdivisions (a), (b), (e), (g) and (i). It alleged under subdivision (a) (serious physical harm) that Shane suffered physical harm inflicted nonaccidentally by petitioner. Specifically, it alleged Shane was admitted to the emergency room on November 12 with a lacerated liver, multiple broken ribs in different stages of healing, pinch marks on his penis, multiple bruises on his arms and torso in various stages of healing. Under subdivisions (b) (failure to protect) and (e) (severe physical abuse), the petition alleged that on November 10, petitioner left Shane in the unsupervised care of her boyfriend, Tony H., for four hours despite having an alternate child care option and despite knowledge that he may have abused Shane or Nicolas on one or more prior occasions. Under subdivision (g) (no provision for support), it alleged the whereabouts of Shanes alleged father were unknown. Under subdivision (i) (cruelty), it alleged that petitioner had subjected Shane to acts of cruelty including the aforementioned injuries and two missing fingernails and positive test results for marijuana. Petitioner pled no contest to the petition, and the court adopted the Departments findings and recommendations at the December jurisdiction hearing.
Shane and Nicolas have different fathers.
The Departments January 2006 disposition report recommended Shane be declared a dependent of the court and non-reunification for petitioner (§ 361.5, subd. (b)(5)). According to the therapist at petitioners parent-child program, petitioners interactions with her children were "sparse and superficial." The therapist had serious concerns about petitioners faulty judgment, i.e., in leaving Shane with her boyfriend despite having acknowledged that she believed he posed a risk to Shane. Petitioner also failed to follow through on securing a restraining order against Tony despite his abuse of Shane. Petitioner was having weekly visits with Shane that went well, but after the visits he was happy to return to his foster home, where Nicolas was also placed. While with petitioner, Shane hit himself in the face and told her he no longer had broken ribs. The Department recommended non-reunification for petitioner based on: petitioners willful conduct which caused Shane to suffer severe physical abuse (§ 300, subd. (e)); her failure to secure a restraining order against the perpetrator; and her failure to place her childrens needs ahead of her own. The Department opined that based on Shanes emotional stability and lack of negative impact from separation from petitioner, the failure to try reunification would not be detrimental to him. The court adopted the Departments recommendations at the January 17, 2006 dispositional hearing and set the matter for a .26 hearing.
In February 2006, Nicolass counsel filed a section 388 modification petition requesting that reunification services not be offered to petitioner in light of the denial of reunification services to petitioner for Shane and petitioners failure to adequately supervise and protect Shane.
In April 2006, petitioner opposed the section 388 petition regarding Nicolas. Concurrently, she filed her own section 388 petition regarding Shane, requesting reinstatement of reunification services, vacation of the .26 hearing and placement of Shane with the childrens maternal grandmother, Debra C. pending further court orders. The petition was supplemented with declarations by petitioner and Debra. In June, the parties stipulated that petitioners request for reunification as to Shane in her section 388 petition would be dismissed without prejudice, and Debra would be immediately assessed for placement. The parties also stipulated that Nicolass section 388 petition would be granted, thus terminating petitioners reunification services regarding him.
Departments Section 388 Report
In July 2006, Department social worker Sherri DeLaTorre submitted a section 388 report recommending that petitioners request for placement of the children with Debra be denied as inappropriate and not in the childrens best interest. The report noted that at the minors disposition hearings in October 2005 and January 2006, Debra was not a viable placement option and had specifically declined placement even on a temporary basis. Although Debra did request placement in January, she was ambivalent about it. The report noted "strong evidence" that Debra had failed to intervene on behalf of the children despite knowledge of their frequent and suspicious injuries that were suggestive of abuse. Debra came to petitioners home every morning, to dress the children and transport them to school. During the Departments 2005 investigation of alleged abuse, Debra and petitioner concurred on a plausible explanation of the injuries or blamed Shane for injuring Nicolas.
The report also stated that in June 2006, Shane told a Department social worker after a visit with Debra that Debra said he and Nicolas would be coming to live with her. Debra denied making such a statement to Shane. The report stated that in light of Debras having been advised against making statements to the children about placement, her doing so was "inexcusable," and indicated she would be unable to act in their best interests and facilitate appropriate visits if they were placed with her.
The report stated that Debras tenuous commitment to becoming a permanent caregiver for the children and her history of multiple partners and "life changes" did not suggest the likelihood for a successful permanent placement. Instead the Department considered Debras willingness to adopt or be a guardian as a "veiled attempt to satisfy [petitioner] and/or to subsequently reunify the [children] with [petitioner]."
The report noted that Debra has had an ongoing relationship with the children since they were born. Shane and petitioner lived with Debra for the first six months of Shanes life and on another occasion the children lived with her for a few months. Debra had four significant partners, three of whom she described as "unsavory at best." Her current partner lives with her part time. Debra told DeLaTorre she wanted the children placed with her because she did not want to lose her grandsons or disappoint petitioner. Shane repeatedly told his foster parents he wanted to remain with them and did not want to reside with Debra.
The report attached a May 2006 bonding study regarding the children, petitioner, and Debra, obtained by petitioners counsel, and prepared by psychologist Gloria Speicher. Speichers report stated that according to Debra, her special bond with petitioner returned when petitioner stopped using drugs and Debra was involved in petitioners life. Debra was invested in helping petitioner to be a better parent, and petitioner wanted her children back. Although both children were bonded with petitioner and Debra, Shane was more so. Both children were insecure in their beliefs that Debra and particularly, petitioner, would consistently and timely meet their needs. The children loved Debra, sought her attention and showed concern for her. Debra had had periods of strong daily presence with the children and periods of absence in their lives. Speichers report said Debra had been consistently emotionally available to them for the past 18 months.
The Departments report also attached a June 2006 psychological report prepared by psychologist Frederica Conrad at the Departments request. Conrad assessed each childs attachment to petitioner, Debra, and their foster parents, who seek to adopt them. Conrad found that the children had begun bonding with their foster family, looked to the foster parents as primary parent figures for their daily care and safety, and had a strong emotional bond with the foster parents and extended family. The foster parents were attuned to the childrens emotional and developmental needs, and Conrad opined their development would be facilitated by continued placement in their foster home. Conrad opined that the childrens relationship with petitioner and Debra was "more complicated." Shane had a bond with Debra and petitioner, but Nicolas was "ambivalent to avoidant" as to petitioner and had a more positive relationship with Debra. Although the children liked their bi-monthly visits with Debra and petitioner, neither child looked to Debra or petitioner for daily caretaking or safety. Conrad opined that both children had developmental delays for which they would need special education services. They both were at high risk for future problems due to neglect and serious abuse and exhibited stress-related symptoms. Conrad opined that any disruption of the childrens primary emotional bond with their foster parents would be detrimental to them.
Section 388 Hearing
At the section 388 hearing which commenced in August 2006, Department social worker DeLaTorre testified the children had been in their current foster placement since February. DeLaTorre said that prior to January 18, 2006, Debra had told social worker Mary Pagan that she was starting a new relationship, was unable to have the children on a full-time basis and was only willing to "help out." At the commencement of DeLaTorres January 18 interview with Debra, Debra requested the children be placed with her. When DeLaTorre asked her what had changed, Debra said she was "afraid of losing the kids on a full-time basis." By the end of the January 18 interview, she was no longer requesting such placement, and did not reinstate or mention a request for placement in a January 24 communication with DeLaTorre.
Department social worker Robert Garay was the childrens social worker for several months after DeLaTorre, and supervised their bi-monthly visits with petitioner and Debra. Generally, the children were apprehensive when first seeing petitioner but were not apprehensive when seeing Debra. However, they would ask Garay when they would be going back to their foster home, and Garay would have to tell them to hug petitioner and Debra goodbye. Garay said Shane told him that Debra said the children were going to live with her.
Department social worker Barbara Thompson met with Debra in June 2005, and Debra said she had taken Nicolas to the hospital that day, and Shane had told Debra that Tony had hit Nicolas in the head. Although Debra agreed to notify Thompson of any further injuries, she never did.
Department social worker Diana Longacre testified she talked with Debra on November 2005 at the hospital where Shane was taken. Debra told Longacre that petitioner had been worried about Tony abusing Shane, but was not sure it was happening. Longacres impression was that Debra had known of petitioners concern for a "while."
Celeste Littrell cared for Shane in a shelter after he was released from the hospital in November 2005 until February 2006. On one occasion when Shane told her Tony had cut his nose with a knife, Littrell asked if he had ever told anybody about it. Shane responded, "No, [Debra] tells me never tell nothing," and shook his finger in front of his face. On another occasion, Shane told Littrell, "[Debra] says never tell secrets."
Department social worker Mary Pagan testified that in August 2005, the day the children were detained, she asked Debra if she wanted the children placed with her and Debra said she had just started a new relationship and did not want placement but would help with the children. Pagan said that in a conversation with petitioner, petitioner said she had asked Debra to take one of the children because of the injuries that were happening to Nicolas perhaps caused by Shane, and Debra refused to take either child.
Debra testified she had submitted an adoption packet for the children and described her relationship with Shane as "very close." She said that at the January 24, 2006 meeting, with state adoptions worker Toni Jones and DeLaTorre, DeLaTorre began by saying, with no explanation, that Debra did not qualify to have the children placed with her. DeLaTorre did tell Debra that because of Debras "secret with Shane," DeLaTorre was unsure whether Debra was involved in Shanes abuse. At the end of the meeting Debra did not believe any consideration would be given to placing the children with her, and Debra had the impression that she had to avoid a fight with the Department in order to be able to have some kind of relationship with the children. Thus, she told them she just wanted to be a grandmother. Debra said when she met with DeLaTorre and Jones in a June 2006 meeting at Debras home, the social workers did not inspect the property and, again, DeLaTorre told Debra she did not qualify for placement. Debra explained that because Shane is very sensitive to lights, she dressed the children in very dim light in the mornings and could not see bruising on their bodies unless it was "horrendous."
Debra said the children should be placed with her rather than a foster parent because she had loved them longer, was more experienced in dealing with handicapped children, knew what it was like to be "there for the long run," had the support of friends and family, and believed the children had bonded with her.
Ruling On Section 388 Petition
On February 23, 2007, the court issued a written ruling denying petitioners request under section 388 that the children be placed with Debra. The court found the only new circumstance asserted in petitioners section 388 petition was that Debra had changed her mind and was now requesting placement of the children. The court ruled that because the dispositional hearings for the children occurred long before the filing of petitioners section 388 petition, the relative placement preferences under section 361.3 were not applicable. The court concluded petitioners section 388 petition did not establish "a prima facie showing of a true (and believable) change of circumstances," or new evidence that would call for disturbing the previous placement or be in the childrens best interests.
Alternatively, the court ruled that Debras request and petitioners petition were untimely under section 358.1, subdivision (h), premature under section 361.3, subdivision (d), and failed to establish that placement of the children with Debra was in the best interests of the children (§ 388, subd. (b)(4)). The court did find that the Departments assessment understated Debras "positive aspects," including Debras six-month intervention between December 2004 and April 2005 when she voluntarily took the children from petitioner while waiting for petitioner "to get her life together." However, the court concluded placement of the children with Debra was not in their best interests because it posed too great a risk for the children. The court noted that Debra returned the children to petitioner too soon, had almost daily contact with them while they sustained serious, repetitive injuries over a period of months, vacillated between being a full-time intervenor and a part-time interested grandmother, and relied on others to report the childrens injuries. Subsequently, the court set a .26 for the children for May 14, 2007.
DISCUSSION
I. The Section 388 Petition Was Properly Denied
Petitioner contends the court abused its discretion in denying her section 388 petition.
Section 388 provides, in relevant part: "(a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction." The party seeking modification of a prior court order has the burden of showing changed circumstances or new evidence. (Former Cal. Rules of Court, rule 1432(f) (now rule 5.570(h).)
The courts section 388 determination is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) " `["] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Petitioner had the burden of proving that changed circumstances necessitated modification of the existing order to serve the childrens best interests. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 521, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The short answer to petitioners claim is that substantial evidence supports the courts finding that placement of the children with Debra would be "risky" and was not in their best interests.
The record establishes that although Debra came to petitioners home to dress the children in the mornings and transported them to school, she apparently failed to notice they had sustained serious, repetitive injuries over a period of months. Evidence was also presented that Debra knew about petitioners concern that Tony was abusing the children but failed to act on that knowledge, and may have given the children the notion that they were not to tell anyone about abuse they suffered. Clearly, the court could reasonably conclude there was a significant risk that Debra would be unable or unwilling to acknowledge or address the childrens special needs or provide for their safety and well-being.
In addition, the record establishes that Debras interest in having the children placed was inconsistent. After the children were detained, she was unwilling to take one of the children though there was concern that Nicolass injuries were being inflicted by Shane. At another point, Debra was unwilling to take the children because she was in a new relationship. And, in January 2006, she vacillated between wanting the children placed with her and merely wanting to be their grandmother.
Finally, conflicting evidence was presented as to the nature of the childrens bond with Debra. Although they appeared to be happy to see her at visits, they relied on their foster parents as primary caretakers and were insecure in their beliefs that Debra would consistently and timely meet their needs.
II. Section 361.3
Next, petitioner contends the court abused its discretion in failing to give Debra preferential consideration for placement under section 361.3. That section provides, in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] . . . [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child.
Even assuming that section 361.3 applies, for the reasons given above in affirming the courts denial of petitioners section 388 petition, substantial evidence supports the trial courts finding that placement of the children with Debra would be "risky" and not in their best interest. No abuse of discretion is shown.
III. The Department Did Not Violate Its Position of Trust As An Arm Of The Court
Finally, petitioner claims "[t]he Department violated its position of trust as an arm of the court thereby depriving petitioner[ ] of fundamental fairness and accurate fact-finding." She notes that on June 19, 2006, the parties stipulated that petitioner would agree not to contest the termination of her reunification services as to Shane in exchange for the Departments "immediate" assessment of Debra for placement of the children. She argues that "it is clear from the tenor of the Departments report and Debras testimony" that the Department never intended to assess Debras current situation or place the children with her. She notes that the Department did not go to Debras home or interview her, "relied on stale and deliberately distorted information to support their previous position that the children should not be placed with Debra."
We disagree. Petitioners generalized assertions are merely speculative and unsupported by the record. The court noted in its written ruling that the Departments report did not sufficiently describe Debras positive qualities. Nonetheless, it found that placement of the children with Debra was not in their best interest. In sum, Debra had access to the children on an almost daily basis during the several months that the children were suffering horrific physical abuse and claimed to have been unaware of it. Moreover, her vacillation as to whether she wanted the children placed with her or merely wanted to be a helpful and loving grandmother to them, supports the courts finding that placement of the children with Debra would be risky and was not in the childrens best interest.
DISPOSITION
The petition is denied on the merits. (Cal. Const., art. VI, § 14; Former Cal. Rules of Court, rule 38.1 (now rule 8.452); Kowis v. Howard (1992) 3 Cal.4th 888.) Because the .26 hearing is set for May 14, 2007, our decision is immediately final as to this court. (Former Cal. Rules of Court, rule 24 (now rule 8.264(b))), and the request for a stay of that hearing is denied.
We concur.
GEMELLO, J.
NEEDHAM, J.